Rethinking free expression in the feminist classroom: The problem of hate speech Nancy C Cornwell [0]. Feminist Teacher [1]. Norton: 1998 [2]. Vol.12, Iss. 2; pg. 107

Rethinking Free Expression in the Feminist Classroom: The Problem of Hate Speech *

Introduction

Academic freedom, which includes freedom of discussion in the classroom environment, is important to the pedagogical process. Whether it be student-centered discussion, a teacher-centered Socratic method, or any combination in between, uninhibited, open debate is central to learning. Historically, the commitment to free expression, like that experienced in academe, did not emerge in a vacuum. Rather, the justifications for free expression are rooted in a specific liberal ideology that privileges individualism and autonomy and, increasingly, an uncritical adoption of a marketplace of ideas as a guiding metaphor for classroom discussion. The marketplace of ideas metaphor invokes an image of a classroom where multiple positions and contributions are presented and considered. The assumption is that, through careful consideration, some ideas rise in merit and by contrast all the "lesser" ideas lose sway. The marketplace of ideas is a romantic and even seductive way to think about free speech, particularly in the classroom, where free speech takes on almost "sacred" qualities. Subsequently, the marketplace of ideas metaphor seems to nest nicely with the feminist goal of a democratic learning environment. In this light, and barring any confounding factors, a marketplace approach to free expression appears self-evidently important to the classroom setting.

But if the claims of feminist pedagogy are taken seriously, it teaches that the classroom is ripe with complicated dynamics that undermine the hypothetical marketplace. Thus, there is a schism between the goals of feminist pedagogy and the prevailing ideology of free speech. In the case of hate speech, in particular, the marketplace approach to free expression in the classroom is, at times, a perpetuation of the inequities and injustices that feminist pedagogy attempts to overcome. The question becomes, then, how do feminist teachers negotiate this schism when they deal with harmful expression, such as hate speech?

In this essay, I first briefly define hate speech and illustrate how the phenomenon operates on college and university campuses today. Next, I describe the main challenge to hate speech made by critical race theorists and then explain why a feminist critique can reorient the parameters of hateful speech. 1 This rearticulation shifts the question of free speech in the classroom away from its uncomfortable tension between freedom of expression and equal opportunity. In that vein, this essay argues that an approach to speech in the feminist classroom rooted in the ethic of care is more consistent with and helps further the goals of feminist pedagogy.

Hate Speech on University Campuses

The nature of higher education has changed in this country, and not without some tension. As Arthur and Shapiro summarize, colleges and universities face challenges to the traditional Eurocentric canon, a heightened sensitivity to sexual harassment, the adoption of affirmative action policies that focus on the hiring of women and minorities and, most relevant to this essay, the adoption of speech codes to sanction certain speech (1-5).

The rise of such speech codes in the early 1990s did not occur in a vacuum. College and university campuses have been witness to noticeable increases of intolerance towards certain races and religions, sexual orientations, and women (Wilson 84). 2 Physical harassment certainly has been part of this growing intolerance, but a more frequent and common manifestation has been hate speech, best defined as verbal harassment that focuses on characteristics such as race, religion, gender, sexual orientation, and disability. Universities have responded to this phenomenon in ways that range from reaffirming the right of free expression--even for hate speech--to establishing educational programs to counter hateful messages or even instituting speech codes that vary in scope (People For the American Way 18-21).

Generally, attempts to regulate or punish hate speech via speech codes have met with serious criticism by those concerned about possible conflicts with the First Amendment to the United States Constitution. To the relief of many, hate speech codes have not survived constitutional challenges at public universities, where most of the judicial attention to hate speech has been focused (Doe 852; U.W.M. 774). Traditional liberal speech theorists tend toward an absolutist view of free speech; they argue that to begin to limit speech based on content marks the embarkation down the "slippery slope" toward censorship. While there are still universities with hate speech codes in effect, most public universities have dropped them, and the ones that remain tend either to be at private institutions (not open to constitutional challenge) or narrowly worded so that they essentially mimic the "fighting words" doctrine that the courts have carved out over the years as a category of speech unprotected by the First Amendment. 3

At one level, the judicial decisions over the last decade have provided some closure to the legal debates about university speech codes. 4 University administrators' hands are largely tied when it comes to hate speech codes. However, the underlying issues, social and political dynamics, and effects associated with hate speech remain unresolved. One does not have to look further than the presence of hate speech on the Internet to recognize the problem is not going away.

Critical Race Theorists' Response to Hate Speech

In response to the traditional First Amendment arguments for protecting hate speech (Strossen 484), critical race scholars such as Toni Massaro, Mari Matsuda, Charles Lawrence, and Richard Delgado all have made arguments in support of various forms of speech codes or other sanctions in response to hate speech. Their work is infused with emotional force through their use of compelling anecdotes, at times from personal experience as victims of hateful speech. A thread that runs through the racist speech literature argues that it is impossible to fully understand the harmful nature of such speech--the psychological damage, its ability to silence the victim, the re-affirmation of the victim's second class status--if one is not a minority. The complexity of the hate speech issue, for these writers, is revealed by the powerful role their minority experiences play.

These theorists actively have challenged the prevailing perception that hateful speech should remain protected speech. Delgado has argued that the dilemma of hate speech presents "constitutional narratives in collision," and argues that one must consider the competing Fourteenth Amendment rights of equal opportunity that are violated by hate speech. Drawing upon African American history and social science data to reveal the broader effects of racial epithets on minorities, Delgado has proposed that an independent tort be permitted so that victims of racial slurs could sue their perpetrators (133). Delgado's lack of success in implementing his tort has much to do with the ideology of free speech. The heavy presumption that favors free speech over equal opportunity and protection--an ongoing narrative through judicial decisions--assumes a pre-existing state of equality among individuals. Yet feminist and most critical scholars are in agreement that such is not the case.

Mari Matsuda moves beyond Delgado's proposed tort and expands the punitive possibilities to include "formal criminal and administrative sanctions" to redress insulting language (17). She argues, "[t]olerance of hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay" (18). The consequences of hate speech, she says, should be sanctioned as any corporeal harm to an individual is punished. She identifies three characteristics of racist speech: 1) the message is of racial inferiority, 2) the message is directed against a historically oppressed group, and 3) the message is persecutory, hateful, and degrading (Matsuda 36).

Matsuda also mentions the "special case of universities" where students are "particularly dependent on the university for community, for intellectual development, and for self-definition" (44). She argues that tolerance of hate speech in the academic setting is more harmful to the victim than tolerance in the community at large. By inaction, the university, she argues, implicitly supports an atmosphere hostile to minorities and other victims of hate speech. However, Matsuda's position limits actionable hate speech to messages of racial inferiority, so her proposal remains blind to the distress that discussion of obscenity and pornography places on some women.

Charles Lawrence proposes two methods of regulating hate speech. The first addresses face-to-face epithets. He supports "narrowly drafted provisions aimed at racist speech that results in direct, immediate, and substantial injury" (437). Face-to-face insults are undeserving of protection because the injurious impact of racial insults is like a "slap in the face." He writes: "The injury is instantaneous. There is neither an opportunity for intermediary reflection on the idea conveyed nor an opportunity for responsive speech" (452). Racial insults do not foster more speech (generally considered a valuable reason for protecting speech); they function "as a preemptive strike" (453). The intent of racial insults is not to "discover truth or initiate dialogue but to injure the victim" (452).

Lawrence's work illuminates this problem for minorities in a way that is also relevant to women. As he explains, the "fighting words" doctrine assumes that a hostile encounter involves "two persons of relatively equal power who have been acculturated to respond to face-to-face insults with violence" (454). What remains unexplored in the "fighting words" doctrine is that many communicative moments, especially hostile ones, do not involve participants of equal power. The "fighting words" doctrine provides inadequate protection for women who, for fear of physical harm, are less likely than men to physically strike out at men in response to gendered insults. It also is unlikely, as Lawrence notes, that epithets occur in situations where the perpetrator is outnumbered or overmatched. Therefore, a more likely response by the victim who is a female, a minority, or both is silence and submission. "Fighting words doctrine, viewed in this way, is a paradigm based on a white male point of view, [and] captures the `macho' quality of male discourse" (454).

Delgado's and Lawrence's suggestions have enormous potential as legal remedies, but are less helpful in the more informal, non-legal environment of the classroom. Legal options, in the end, remain limited in success and, more importantly, of limited value to feminist pedagogy and the day-to-day intricacies of the classroom. The problem of hate speech remains constructed as a purely legal argument about free speech that is rooted in a tradition steeped in assumptions about political and social life that do not translate well to the environment of the classroom.

A Feminist Critique of the Liberal/Marketplace Approach to Free Speech

Feminists have launched substantial critiques of the "assumptions" that make up liberal theory and it is on the basis of those critiques that I challenge the marketplace approach to free expression. With the tradition of critical analysis of the political and philosophical ideas that have given rise to the very tenets of free speech that hate speech critics now question, feminist theory not only enriches a critique of hate speech in that it represents the interests of female victims of hateful expression, but its intellectual tradition and critical analytical practices go to the core of the philosophical underpinning of the debates about free speech that set up the hate speech arguments.

The individual, instead of the social relations between individuals, is at the center of the classical liberal interpretation of the meaning of free speech under the First Amendment (Graber 17-50). It is an individual right that does not acknowledge that meaning is made in the relationship, not in the "relator" or the "relatee." In the relationship between males and females, blacks and whites, white females and black females, homosexuals and heterosexuals, there are differentiations in power and the dominant becomes the standard by which the "other" is defined. Differences in the power to define the "other" means differences in the power to control meaning making. Contrary to prevailing liberal ideology, speech is not an individual experience, a right that is freely held at the level of autonomous individuality. Speech is meaning-making. It defines. It labels. It differentiates power. It constitutes the relationship between individuals. It is power.

The liberal tradition fails to respond to any systemic, inherent oppression in liberal society or in the way society articulates the value of free speech. Free speech is supported by symbols and sets of beliefs about the nature of the democratic process that are so powerful that, while the articulation of free speech rights emerged in a traditional liberal framework, its ideology has crossed most political boundaries. It is at home, for example, in most theories of the Left that both unproblematically embrace the liberal tradition of free speech and at the same time make concerted efforts to expose issues of gender or racial inequities. But free speech is not an ahistorical, objective, universal concept. Free speech is a construct of the American liberal tradition. It takes shape through certain assumptions about the existence of a marketplace of ideas, the triumph of truth over falsehood, the potential of civil society, and the primacy of individual freedom over eqality. Feminist thought argues that those ideas have been defined, articulated, and interpreted by affluent white males for 200 years. What is understood as free speech and how the protection of hate speech is rationalized are products of that tradition.

Furthermore, discourse about hate speech has not been infused with the concerns of women because the liberal tradition has assumed that women exist and function in the private sphere where the First Amendment was never meant to intrude and, according to the liberal argument, never should intrude. By asserting the "personal is political," feminism has challenged the traditional distinctions between the private and public sphere, between the political and nonpolitical realms. Blurring these distinctions enables feminism to offer an ongoing critique of rational modernity from which free speech should not be sequestered. 5 Without a thorough feminist analysis, the meaning of free speech--with a history of gendered articulation and interpretation--will continue to present itself as gender-neutral, power-neutral, and generally unproblematic. 6

Feminist scholars who consciously engage social, gender, and racial inequities cannot ignore the inherent inequity present in the abstract notions of individualism, freedom, autonomy, and equality associated with liberal theory. Likewise, feminist scholars and teachers must critically analyze how these liberal values create illusionary democratic practices and a false sense of equality in the classroom. To work toward a feminist classroom necessitates embracing the particularities of classroom dynamics that recognize power differentials, not only between teacher and students but between the students themselves, that emerge in very specific ways and in specific circumstances.

So, how should the competing notions of liberal free speech be reconciled with the teachings of feminism? I suggest that hate speech be handled in the classroom in a way that is consistent with two goals of feminist pedagogy: 1) revealing and engaging power, and 2) community building in the classroom (Shrewsbury 10-11).

Caring About Speech in the Feminist Classroom: Discussing Hateful Speech

When Paulo Freire spoke of the dichotomous relationship between the oppressor and the oppressed and of the liberatory project of moving towards true humanity, he identified (among other things) the place of differential power among relationships in an academic or educational setting. Yet, Cameron McCarthy criticizes Freire for neglecting the layered nature of oppressive practices (e.g., how the oppressed can also be the oppressor of others). The multiple layers of differential power are particularly relevant to the classroom where interactions include the power dynamic between teacher and student, as well as differential relationships based on gender, race, and even less obvious characteristics such as religion and sexual orientation. McCarthy refers to these multiple relationships as the "nonsynchrony of oppression" (265). Carmen Luke and Jennifer Gore add that feminist pedagogy includes "clarify[ing] how relations of domination subordinate subjects marked by gender, ethnicity, race, class, sexuality, and many other markers of difference"(1). So feminist pedagogy exists not only to help women disrupt the power hierarchies but to allow other unempowered groups to do the same (Culley 213). Thus, while many feminists challenge Freire's call for the struggle for humanization (as it is riddled with its own assumptions of universal truths and values), feminists are very focused on the differential relationships between individuals and groups. 7

A key factor in these differential relationships involves the "role and authority of the teacher" (Weiler 31). Those of us in the classroom who hold dear the ideal of academic freedom, and who (maybe too easily) allow it to be translated into an absolutist position on freedom of expression in the academy, must address the oppressive qualities of that position. If the role of the feminist teacher is to facilitate a dialogue that sets the stage for the joint project of liberatory education (consistent with the ideas of critical pedagogy as well as feminist pedagogy), then there needs to be careful analyses of the assumptions about the teacher in the process. Feminists recognize the presence of institutional power in an educational setting and its influence on the relationship between teacher and student. A teacher, endorsing an abstract idea of free discourse in response to claims of hateful speech, even when well-intentioned and aimed at turning the encounter into a learning experience, may, in effect, reinforce a set of relationships and a particular educational environment that ultimately has the opposite effect for victims of hate speech (an argument similar to those made earlier by Delgado and Lawrence).

The solution in the classroom needs to include a perspective that recognizes and respects the reality that students enter the classroom at different levels of power. These differences in power exist between students as well as between students and the teacher. Even within the spirit of free and open discourse considered essential to learning, how can one facilitate a community of mutual respect and understanding within a sphere of openness? Ultimately that environment needs to be transformed into a setting that recognizes and adapts to these differences so that "dialogue" can replace "expression."

To negotiate this difficult terrain between the interchange of ideas and the harmful effects of some speech, I assert that the feminist ethic of care is a useful way to reconceptualize ideas of free speech and guide understanding of the dynamics of classroom discussion of sensitive subjects. To support this position, I first will describe the ethic of care and then show how it shifts the traditional approaches to hate speech mentioned earlier.

The ethic of care is an evolving concept, but it is fair to say that it is rooted in a response to what feminists see as the gendered origin and practice of the liberal tradition, particularly the "ethic of justice," and all its corresponding values and assumptions (Clement 1). The ethic of care emerged from Carol Gilligan's research that suggests that some people (mostly women, but it could also include men) follow a "different voice" in making moral choices.

The ethic of care's shift towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights. Instead, free expression should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship. 8 From the perspective of the ethic of care, communication, speech, conversation, and dialogue all are essential to establishing, maintaining, and nurturing relationships. Communication is the key connection that forms the foundation of human identity and meaning (Carey 13-36). Speech and the practice of free speech is a social activity and inextricable from the system of social relationships that shape individuals. It is part of the collective activity of social life (Minow 217). 9 Free speech, therefore, is valued, but with a different conceptual framework, one not based on abstract rules but on visions of connections, normative senses of value, and foundations of respect for the humanity of others.

The ethic of care is particularly useful for understanding hate speech in that it is formulated around the same contextual, situated, interpreted and interconnected descriptions of reality that also define hate speech. The very aspects of hate speech that frustrate liberal attempts to seize it, and to make sense of it, fall precisely within the sphere of values that make up the ethic of care. Caring about hate speech means squarely facing the contextual, situated reality of such communication. Caring about hate speech means recognizing the particular and discrete nature of hate speech's harm, the reality of which is, at best, indeterminate from a liberal perspective. The ethic of care recognizes that the harm of hate speech may not be easily quantified, empirically measured, visually observed, or even causally linked to a specific hate speech act.

A caring approach to hate speech recognizes that hate speech is a form of communication that creates meaning through a context of racism and bigotry. That context is what provides hate speech with its force and its ability to harm. Allowing harm to others goes against the central imperative of the ethic of care. The ethic of care takes a social constructionist approach to the problem of hate speech. From this perspective, external factors in human life participate in the formation of the internal factors that define individual identity. Therefore, the external, implicit, societal endorsement of hate speech (even if only through a lack of explicit condemnation) is part and parcel of the internal construction of racism and sexism and other expressions of hate and bigotry. And, if individuals are who they are through their social relations with others, then the language of hate speech constructs a "truth" about the victims of hate speech that invariably impacts on their liberty (West 764).

Given our connectedness, caring about hate speech requires, as ethicist Joan Tronto suggests, that one be attentive to others. This means more than just paying attention. It means shifting one's energy toward understanding the particular perspectives of others. One can imagine the difference in how hate speech is approached if, instead of the liberal remedy of countering hate speech with more speech, the emphasis is placed on creating a discursive space where mutual communication--as a shared creation of meaning--is the priority. Speech that fundamentally disrupts the balance in the communication process--hate speech being a good example--should not hold the same social value as communication that seeks to bring about better understanding.

While the teacher sets the stage for community building in the feminist classroom, much of the dialogue and learning is generated between students as part of the learning community. Furthermore, experience needs to be recognized as an important and valid contribution to epistemology, for it challenges the universal interests that justify the abstract individualist justifications for free speech. Incorporating experience into classroom learning helps accentuate the experience of minorities and hate speech victims in a community dialogue about hate speech and attenuate the force of those who perpetuate it. Those who are victims of hate speech must have the equal footing to enter into the solution seeking process. That cannot happen with hateful, non-productive, noninstructional language that silences the victim and does not open the space for the joint project of change. Such an undertaking implies a cooperative, negotiated effort, not a position rooted in individualist ideas.

At one level, the ethic of care greatly values free expression as communication, recognizing how important communication is to the connected nature of understanding, care and the particular. However, the ethic of care would be sensitive to the social nature of communication as well as acknowledge the concrete experience of "harmful" communication, such as hate speech. Permitting hate speech in the classroom under the illusion of free and open discussion does not create a better understanding about racism. Permitting hate speech does not reflect a teacher's responsibility to academic freedom in the learning environment. Hate speech in the classroom may effectively be an expressive act that harms, intimidates, and silences students. After all, caring about hate speech means to address hate speech in a content specific way and to engage it in the service of conversation, dialogue, or communication, which is the location of meaning formation.

Conclusion

This essay takes the position that a feminist ethic of care is a rich resource for feminist teachers to use to re-examine the phenomenon of hate speech in the classroom, a place long held up as an arena of free and open inquiry. A feminist approach, with its rich history of interdisciplinary theorizing and a tradition of connecting theory to pedagogical practice, situates hate speech as part of larger political and social practices that include but are not reducible simply to questions of constitutionality. In the classroom, feminist pedagogy and the ethic of care supersede the simplistic notions of the abstract individual linked to the traditional framework of expressive rights. They also focus attention on the complex dynamics and the related "fluid" nature of what constitutes hate speech in a given setting, at a specific point in time.

A feminist classroom collaboratively seeks a cooperative and negotiated effort to deal with hate speech. For the victim it means having the voice and power to name the injury and give it meaning above and beyond the received universal truth and assumption that words do not harm. For the victimizer (and other participants in the context that hold varying forms of power that may perpetuate the oppression of the victim), it means not facilitating or tolerating personal, cultural, or institutional practices that mask the nature of hate speech and reduce it to an abstract idea that cannot be excised and separated from other forms of protected speech. That means removing from the educational pedestal the blanket notion of the sanctity and equal value of all speech in an educational setting, and believing that discrimination between forms of speech can be made in a critical manner and with an emancipatory focus.

Notes

* The author thanks Robert Jenson, Mark Orbe, Keith Hearit, and the reviewers of this article for their thoughtful comments and suggestions.

1. Granted there are numerous perspectives of feminist theory and so it is, in a sense, imprecise to speak of a feminist theory Generally, the varying perspectives on feminism are aligned with political positions, though some are rooted in theories of psychology and sociology. When I refer to feminist theory, I refer not so much to the formulations derived from classical liberal feminism or anarchist feminism or psychoanalytic feminism, but draw more on the ideas associated with the types of feminism that are sympathetic to or consistent with liberal democratic, social democratic or socialist ideas. For a detailed description of the different areas of feminist thought, see Jaggar.

2. Organizations such as the National Institute Against Prejudice and Violence, the Anti-Defamation League, and the National Gay and Lesbian Task Force have documented an increase in the number of incidents of harassment in recent years More recently, an African American student at a small private college in southwest Michigan found a racially charged hate letter taped to his door and, the next day, a fire burning on his dorm bed ("Investigation Continues" 2).

3. The fighting words doctrine evolved as a result of the 1942 United States Supreme Court, Chaplinsky v. New Hampshire, where 1) words that "inflict injury" on the sensibilities of others or 2) words that "tend to incite an immediate breach of the peace" are not protected speech (Chaplinsky v. New Hampshire, 315 U.S. 568, Sup. Ct. 1942; qtd. in Tedford 179). The first criterion was dropped in the early 1970s. The second criterion has never officially been overturned by the United States Supreme Court. On the other hand, there also has never been a United States Supreme Court case successfully prosecuted under the fighting words doctrine.

4. In spite of my belief that there are no simple answers to hate speech, including the wholesale adoption of speech codes, I still believe it is crucial for the university not to implicitly endorse hateful or sexist speech by hiding behind the First Amendment instead of fully engaging the problem.

5. Some feminist scholars have found modern liberal society to be deeply gender structured (Jaggar 27-50, 173-206; Okin 197-230; DiStefano 144-186; and Pateman 103-126; Mitchell 24-43; Phillips 92-119).

6. Catharine MacKinnon's and Andrea Dworkin's work are examples of efforts to theorize the feminist implications of protected expression in the area of pornography.

7. For more detailed work challenging universal interests and experience from a feminist perspective, see Harding, Butler, Hartsock, and Nicholson.

8. Martha Minow talks extensively about a social relations approach, within which she includes Gilligan's work as an example Minow also includes literary theory, the moral theories of Seyla Benhabib, the psychological theories of Chodorow, and even the classical republican and communitarian theories of political life (173-224).

9. Yet, at the same time, Minow has addressed the importance of considering power in her warning about the ethics of care She emphasizes that one must not just import the ethic of care and leave in place the system's established rules about what counts as a conflict, its adversarial method, and its assumptions about human personality. Moreover, conceptions of care may ignore the significance of power differentials which the legal framework of rights more explicitly acknowledges. Simply adding an emphasis on caretaking, responsibility and, compassion neglects the profound challenge to conventional legal understandings introduced by the relational methods of feminist theories.

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